The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1887-11-24


R.x-.-s ~ Lurors aaA witnesses.
f,rrgCE or ATTORNEY GENERAL.(
TALLAHAssxR, Fla, November IL. 1887.
Hon. ". D. Barnes. 0mptrsar..
SR: have the honor b return the follow
ing reply 10 your communication OF the 10th
instant Informing me that questions have been
raised a 10 the constituiionalitv OF the prOvi-
sions Of Chapter S7O9 OF the Statutes OF FiondA,
requiring the afildavit Of insolvency, &C. therein
specified, in order 10 have witnesses for the de-
PENDANT In a criminal case subp9naed at the
expense of the State, and paid by the State, and
limiting the number Of such witnesses to be
paid for by the State 10 NOT more than TWO 10
prove any one fact
sions OF the statute are unconstitutional is based
upon Sections II and IA of the Declaration OF
Rights of the present State Constitution. Said
section II declares that 4" in all criminal prose
cutions the accused shall have the right to
- have compulsory process for the attend
ance of witnesses in his favor" The reason
for this provision is historical. BY the COM
mon law, the defendant in q capital case
was not allowed subpoena for his witnesses,
whether he was willing 10 pay for IL or not nor
in fact would bis witnesses I've sworn. though
they appeared voluntarily. This evil was cor
rected by the statutes, 7 VIM. III, G. 8. Sec Z,
and Ann. ST., 1. G. g. sec. 8, (see Q, Phil. Ev.,
4th Am. Ed, 1851 but the recollection that it
once existed is preserved by such provisions
against lis recurrence as that contained in Sec.
IL of our Declaration of Rights This section
does not deal with any question of casts nor is
Il witness subpGnaed for a defendant in crimi-
nal case permitted 10 require prepayment of
fees or his expenses in order to secure his ap-
pearance and testimony in obedience to the
writ. 2 Phil Ev., S38 Wharf. Grim. Ev sec.
348. see nothing in The section that prohibits
the officers who issue and serve subpenas from
requiring defendant To pay their legal fees be-
fore such issuance and service respectively.
State VS.. Waters 80 Maine "a. That, however,
is a matter between the defendant and the on
| Gers, AS there 10 certainly no provision in the
| section for payment Of costs by the Stale.
| Section IA OF the Declaration of Rights de-
clares that no person shall he compelled to pay
| coets except after conviction on a final trial"
Evidently the meaning OF this section is not as
mean that no one shall be compelled to pay
COSTS ina civil case. l understand il TO mean
merely that the defendent in criminal case shall
not be compelled 10 pay costs incurred by the
prosecution in prosecuting him except after con-
| viction on final trial. Nor do see anything
. in the section prohibiting officers from requir
| ing defendant in criminal case 10 pay their
! legal fees for such service, as he may desire Of
| them; but this again lie a matter between the
defendant and the officers, tor whatever exemp-
ton of the defendant from payment of cost
| this section may be supposed 10 contain, it
| Of costs by the State, and the State cannot be
charged with any such costs except by express
| provision OF law.
The only portion of the Constitution to CHI
ing The payment OF costs by the State is Section
Of Art XVI, which is as follows: I'm all
criminal cases prosecuted in the name Of the
State where the defendant is insolvcnt or dis
charged, The State shall pay the legal costs and
expenses, including the fees of officers, under
such regulations as shall be prescribed by law"
| Chapter 37O2 OF the Statutes of Florida is en-
iircy in accord with these requirements of the
Constitution ii provides for rctnn1ing to defend
ants who are discharged their costs which they
have paid, and it provides for payment by the
| State Tor Witnesses for insOlvent defendants, un-
der the regulations therein prescribed. There
is nothing harsh or unreasonable in those regu-
lalions; they merely required defendant, who
wishes 10 have his Witnesses subpGnaed al the
expense of the State, to make an affidavit of
insolvency, AMI such n statement of what he ex-
poets 10 prove by the witnesses as will enable the
court TO see whether the witnesses are material
and the application made in good faith and that
not more than two witnesses shall be summoned
al the expense OF the Slate 10 prove any one fact.
II is to he observed that there is no limitation
OF The number Of witnesses which defendant
may himself have suhpGnaed for any pupOse
but there is a limit as TO the number which can
be subpGnaed for him At the expense of the
State, and be paid by the State, to two to prove
being unconstitutional, that they are made by
the express authority of the only section of the
Constitution which provides for The payment OF
such COSTS by the State at all and il is only under
the III s 6s e hsa the co"'
The sixth amendment TO the Constitution oil
the United States contains substantially the
same declaration as the Constitution of Florida
of The right of a defendant in criminal case to
have compulsory process for bis witnesses, vel
| this has that | rf haap
posed 10 exempt solvent defendant in the
United States Courts from paying the costs oil
procuring the attendance of his Witnesses and
an inso!vent defendant cannot have his wit.
nesses subpGnaed at the expense of the United
States unless he makes affidavit which is
very similar 10 that required for the same pur.
Pose by Chapter 37O2 Of the statutes of Florida
and gets an order of the Judge, which order the
Judge may grant or withhold u g. Rev Stats.
page 1G8. Sec. 878.
The contention that every defendant in a
criminal case has the right to have subp9naed
at the expense OF the State, and have paid by the
3 ate, AS many witnesses as he pleases, withou,
supervision, regulation, restraint or ltmii-that
he can load the pay roll, if he sees fit, with all
his friends and acquaintances, or with the en-
tire population OF his neghbOrhoOd, or any null
titudethat he may choose to summon, and that
this is constitutional right, the exercise of which
The Legislature can in no way regulate, though
the State is to pay the bills, hardly seems to re-
quire rrfutnion.
l am of opinion that all the provisions and
requirements of Chapter 3702, in the premises.
are constitutional and must be observed and
complied with.
Very respectfully,
G. NJ. COOPER Attorney General